Scribd sued over copyright… by Jammie Thomas lawyers

The law firm of Camara & Sibley has decided to take on document-sharing website Scribd in a big way, seeking class action status against the site in a lawsuit filed Friday in a Texas federal court. The charge: like YouTube, Veoh, and other user-generated content sites, Scribd makes it just too easy to upload copyrighted content without permission, and the company should be held liable... and pay up.

What about all those cases (including the recent Veoh ruling) which broadly construe the DMCA's "safe harbor" provisions to protect these kinds of websites so long as they promptly take down content when notified? Hey, those cases are all out in California, baby! It's time for Texas justice.

An egregious infringer?

What's odd about the case isn't that it was brought; given what has happened to most other user-generated content sites, such a lawsuit was probably inevitable. No, what's odd is that the case was brought by Camara & Sibley, the Houston law firm housed in a "custom-built four-story Tuscan building beside Rice University featuring a fourth-floor deck with 360-degree views of Houston and a built-in grill and wine cellar." Remember, these are the lawyers who are:

Defending Apple nemesis Psystar, the company that sells its own computer hardware preloaded with Mac OS X.

Defending Jammie Thomas, the target of the RIAA's first anti-P2P case that went all the way to trial. Currently, the team is arguing that the $1.92 million in damages from Thomas' retrial are "excessive, shocking, and monstrous."

Still (apparently) planning to file a class action lawsuit against the RIAA in order to "get the $100 million that they stole" from people as part of the group's long-running litigation and settlement campaign against file-swappers.

This time out, though, they represent one Elaine Scott, a Houston author who was horrified to find her 1985 book Stocks and bonds: profits and losses available for download on Scribd; someone had apparently taken the time to scan the entire thing and upload it to the site. Scott noticed that the book had been downloaded more than 100 times and grew incensed that her copyright was being violated. So she notified Scribd, which takes works down when it receives a DMCA takedown notice (as do all US-based user-generated content sites that hope to stay in business).

But the fact that Scribd would take down the book was beside the point; it shouldn't have been there in the first place. Echoing a view that is common among rightsholders, Scott and her lawyers argue that it simply can't be the case that the onus for protecting copyrighted works falls completely upon the rightsholder. That is, sites like YouTube or Scribd shouldn't be able to host copyrighted works, profiting from them indefinitely until a copyright holder takes notice and asks them to stop. Such a system puts a terrific burden on rightsholders if they want to keep their works off of such sites, especially if someone else can simply upload another copy.

In the words of Kiwi Camara, Scott's lawyer, "The West coast technology industry has produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to respond to such complaints... Scribd, Inc, is one such egregious infringer."

One of the unexpected twists to the complaint is that Scribd has actually developed a copyright protection system. When authors send a takedown letter to the site, Scribd adds the offending document to its system to prevent other people from simply uploading it again. But this itself is another act of copyright infringement, according to Camara; Scribd is copying the text of the book or document in question without permission for use in this system, even though the copyright protection system itself might someday turn out to be worth more money that the document storage side of the business.

As for the DMCA, Camara points out that most such court cases have taken place in the Ninth Circuit, which includes San Francisco and Silicon Valley. Such rulings don't automatically have precedent in Texas, and Camara argues that the Fifth Circuit might well come to different conclusions. He also contends that Scribd isn't a "service provider" at all, but a publisher—which would remove the DMCA immunity—and also that Scribd makes money directly off of infringing works (by showing ads), which could also threaten safe harbor protection.

Camara wants to extend the case to an entire class of authors; this fits with what he told Ars this summer, when he said that when his firm takes cases, "we want to fix a problem for a lot of people, including our client."

As for that client, she's quoted in the complaint, too. "I bring this complaint," says Scott, "because I believe that just as it isn't right for children to steal words, it isn't right for websites like Scribd.com to do it, either... If that behavior is allowed to continue I believe it makes a mockery of the copyright laws of the United States and sets a terrible example for all."

51 Reader Comments

...Scribd adds the offending document to its system to prevent other people from simply uploading it again.

Sounds quite a bit like the use of students' documents in the Turnitin service. I believe there was a case that was taken to the Supreme Court which said use for detection of plagiarised content was fair use.

"The West coast technology industry has produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to respond to such complaints...

One of the unexpected twists to the complaint is that Scribd has actually developed a copyright protection system. When authors send a takedown letter to the site, Scribd adds the offending document to its system to prevent other people from simply uploading it again. But this itself is another act of copyright infringement, according to Camara; Scribd is copying the text of the book or document in question without permission for use in this system, even though the copyright protection system itself might someday turn out to be worth more money that the document storage side of the business.

WTF?!? Other than the fact that this use of the copyrighted content most likely will fall under fair use (IANAL so I'm just guessing here), the simple fact that they are trying to sue a web site over their process of copyright infringement prevention is just absurd.

"Hey, you better protect my content from copyright infringement...but not the way you're doing it now, you can't use my content, do it a different way or I will sue you."

Let's hope this fails. It looks like a simple cash grab to me, if youtube and similar sites are protected because they take down stuff after the dmca take down and screen to prevent the same clips from making it up, and this company is doing the same then I don't see an issue.

I am amazed that anyone is surprised at the legal team involved. They are lawyers for fucks sake. They are going to work for whomever is paying. Just because they are defending JT in the RIAA clusterfucks do not mean that they actually give a shit about whether or not her situation is fair and just, but they are getting paid in cash, publicity, or likely both.

Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

Wait, I see a master plan behind this. The safe harbor provisions are part of the DMCA, albeit one of the less horrible parts. If this particular law firm is going to show that the DMCA as a whole was badly put together, they have to erode confidence in every single part of it. Its subtle, and I think somewhat silly, but if it results in the DMCA being repealed and something more sane being put in its place, I applaud the effort.

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

But isn't that, theoretically, how it works for almost any technological leap forward? For instance, some guy watched someone's horse-drawn buggy go by and thought, "I wonder if I could design that buggy to move without the horse?" It seems to me that would build upon someone's existing ideas to create something new.

Originally posted by MJ the Prophet:Wait, I see a master plan behind this. The safe harbor provisions are part of the DMCA, albeit one of the less horrible parts. If this particular law firm is going to show that the DMCA as a whole was badly put together, they have to erode confidence in every single part of it. Its subtle, and I think somewhat silly, but if it results in the DMCA being repealed and something more sane being put in its place, I applaud the effort.

I don't see this being their master plan. Rather, I suspect they're just IP lawyers who are looking to take the side opposite everyone else. By constantly jumping in on the side of the "little guy", they're positioning themselves as the inverse of all the other IP law firms nationwide, which I'm sure is somehow profitable branding.

Further, I'm not convinced getting the DMCA rewritten is a good idea right now. If we don't have the legislative and lobbying framework to steer things in the right direction, we just give the MPAA another pass at mandating things like the broadcast flag or moving to a service-provider-responsible architecture for detecting infringement. This is doubly the case with the possibility of the Supreme Court striking down laws against corporate political donations.

Originally posted by MJ the Prophet:Wait, I see a master plan behind this. The safe harbor provisions are part of the DMCA, albeit one of the less horrible parts. If this particular law firm is going to show that the DMCA as a whole was badly put together, they have to erode confidence in every single part of it. Its subtle, and I think somewhat silly, but if it results in the DMCA being repealed and something more sane being put in its place, I applaud the effort.

They're lawyers. They argue the side that pays them. There's no nefarious master plan.

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

And how do they expect a website to determine that a copyrighted work has been uploaded? There NEEDS to be an exclusion to the whole idea of copyright when no human is reading/listening/experiencing the work, but is simply using it as a pattern to determine if the work is copyrighted.

Practically speaking, when has the "onus for protecting copyrighted works" ever *not* fallen on the rights-holder? Sure, the FBI would (maybe) investigate, but you'd probably still have to file a complaint first.

Or maybe ink and paper manufactures should be made to account for how their products are used, too...

So this book was written in 1985. It was recently downloaded 100 times. . . That dumb bitch should be thankful somebody cared enough to take the time to scan her book. Seriously, she's suing over 100 downloads?! Granted that's probably more interest than when her book actually came out. I can't find any sales numbers on google, but I did find at least six different torrents for it. . .

Also, someone should close down that damn Texas district court system. Nothing but Patent trolls and other bullshit software clowns down there.

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

The complaint is that Scribd might, in the future use this system to violate copyright, by licensing it? That strikes me as very strange indeed (though I haven't read the complaint itself).

The complaint that licensing the system violates copyright doesn't strike me as odd. I think that it easily could. The thing that's weird is that the mere possibility that someone might try violating copyright in the future is sufficient justification for infringement now.

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

And how do they expect a website to determine that a copyrighted work has been uploaded? There NEEDS to be an exclusion to the whole idea of copyright when no human is reading/listening/experiencing the work, but is simply using it as a pattern to determine if the work is copyrighted.

I don't know that it's greed. I see much of these things resulting directly from a conception of works (and words) as property. The author's quote about children stealing words doesn't make much sense (if any) unless you think that words, or at least specific arrangements of them, are property.

I think that this case, and many other issues, makes it clear that there are real problems associated with thinking of specific arrangements of words as property. Copyrights are property. Works are not obviously property, and IMO should not be considered to be property to resolve many, many problems associated with that line of thought.

Mind, it doesn't solve all problems with copyright law, but I think it would help.

From the article:Echoing a view that is common among rightsholders, Scott and her lawyers argue that it simply can't be the case that the onus for protecting copyrighted works falls completely upon the rightsholder. That is, sites like YouTube or Scribd shouldn't be able to host copyrighted works, profiting from them indefinitely until a copyright holder takes notice and asks them to stop. Such a system puts a terrific burden on rightsholders if they want to keep their works off of such sites, especially if someone else can simply upload another copy.

Correct me if I am wrong (as I'm sure someone will), but isn't the entire point of copyright the fact that the rights holder has to enforce it in order to not lose their rights? Or is that only patent? Because I thought the whole reason RIAA et al. were being such hard asses was because they had to in order to show they were trying to protect their rights (well, that plus I'm reasonably sure there's a black hole with a fleet of dead baby seals at the center where their hearts should biologically be).

I'm sorry, but the whole give-and-take of copyright was 1) it's finite in terms, and 2) that it has to be enforced to be kept (again, that may only be patents). In return, you get temporary monopoly and paid for your works beyond the time frame that most other professions in the known world offer. Is that REALLY so much to ask?

Find another profession, lady. Obviously being an author is too hard for you.

@TheException: . . .yeah. That use of "think of the children" was so atrocious that I think it roughly ranked on the scale of publicly broadcasting to the whole world that Santa is fake whilst stealing all the candy in the world and diabolically cackling, twirling one's handlebar mustache. At least it sounded like a "think of the children" sentence to me. I might be wrong though.

Correct me if I am wrong (as I'm sure someone will), but isn't the entire point of copyright the fact that the rights holder has to enforce it in order to not lose their rights? Or is that only patent?

Originally posted by truedis:Your headline makes it seem like the suit actually has something to do with Jammie Thomas. You might want to rethink that one...

No, I think it does a good job of highlighting the irony.

quote:

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

But... has anybody actually done that yet?

quote:

Originally posted by thebackwash:Or, they could just store really long hash values for these works...

Couldn't an uploader circumvent that by inserting a few extraneous characters?

We can only hope that these lawyers do as well for their current client as they did for Ms. Thomas.

quote:

Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

So...what? People do that all the time. Samsung makes televisions but not movies, are they "stealing" from the movie producers by "profiting" from their work?

quote:

Further, I'm not convinced getting the DMCA rewritten is a good idea right now. If we don't have the legislative and lobbying framework to steer things in the right direction, we just give the MPAA another pass at mandating things like the broadcast flag or moving to a service-provider-responsible architecture for detecting infringement. This is doubly the case with the possibility of the Supreme Court striking down laws against corporate political donations.

To some extent I agree. I think the best course is along the lines of getting the anti-circumvention provisions struck down or significantly weakened by the courts. An argument along the lines of antitrust would be interesting: For example, if Microsoft has anything to do with a particular DRM scheme, sue them to force them to license it under a GPL-compatible license so that it can be implemented lawfully on Linux. The lack of free-as-in-speech interoperability is one of the central problems with anti-circumvention, so a ruling that says Microsoft can't anticompetitively implement DRM that can't lawfully be implemented on Linux would go a long way.

because I believe that just as it isn't right for children to steal words...

......

......

I....

*sigh*

Nevermind. I can't comprehend what the hell that sentence is supposed to mean, let alone argue with it.

++Something is terribly terribly wrong with a person who can utter such a sentence. If there were ever an argument for the utter abolition of copyright it is the idea embodied in that quote.

revolting.

I had to read this statement several times. I think the intent of the statement is talking about plagiarism in school. "Kids get in trouble for plagiarizing, and adults shouldn't be able to steal either," type of comment.

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

You think about it for a minute Why would Scribd allow a competitor to license a differentiating feature of their business - one that could help them protect themselves from such lawsuits?

Originally posted by Nate Anderson:Yeah, it seems odd, but think about his point for a minute. If Scribd develops this awesome copyright filter, and a bunch of other Scribd-like sites sprout up and need such a filter, and they license it from Scribd... the company has used people's works to build a commercial product without any payment. That's the argument being made.

You think about it for a minute Why would Scribd allow a competitor to license a differentiating feature of their business - one that could help them protect themselves from such lawsuits?

It's just a hypothetical--no one's saying they plan to do it. It's just a way to think about -why- the system might be objectionable.

It only becomes a plausible issue if other such services arise and Scribd decides that it can make more money by selling an infringement detection tool to others than by running a document retrieval site.

Originally posted by Devin:Nope, but they most certainly displayed movies and tv shows to test it in the development stage.

who said they didnt use there own CCTV system along with a copy of their orrientation video? They own that

So you seriously think that when doing product testing they don't recruit a focus group and plop them in front of a home theater system and make 'em watch Transformers or the Matrix? Obviously my comment was conjecture however I can't imagine it otherwise.

I think they could win this lawsuit. Them being a publisher is definently going to change the landscape. At the minimum they should require somekind of verification from the rightsholder before making the upload available to avoid this kind of lawsuit. That would take care of the "copying the entire work for the copy protection" issue as well. However the downside to that is alot of overhead in checking with these rightsholder for the additional staff needed to do it as well as some kind of license database.